SALIM GUL SHAIKH, MEMBER. ... This appeal is directed against impugned order dated 17.4.2007 whereby major penalty of Dismissal from Service has been imposed on the appellant under the Removal from Service (Special Powers) Ordinance, 2000. The appellant filed Departmental Appeal against this order on 27.4.2007 which having been found unsatisfactory was rejected vide order dated 26.6.2007. Consequently, the present appeal has been find under Section 4 of the Service Tribunal Act, 1973.
2. Brief facts leading to the filing of this appeal are that the appellant, an employee of Pakistan Railways having joined the organization in 1992 as Cleaner and lastly was serving as Fireman w.e.f.
2001 at Loco Shed (Running), Karachi Cantt. Was served with a Show-Cause Notice under the Removal from Service (Special Powers) Ordinance, 2000, on 8.6.2006 on the following charges:- "(1) Whereas you Mr. Muhammad Shafique son of Bashir Ahmed, Fireman under FO(R)KC is charged with misconduct for the following charges: While you were working CCM/Container as Fireman on 10.2.2006 is held responsible for not observing the red aspect and Auto Signal. You also failed to have a good look and to advice the Driver to control the train in rear of KG 17 UP timely applying the emergency brake. You thus violated G.Rs. 6(a), 259(a), 260 and 122 of the General & Subsidiary Rules.
(2) You are therefore, being proceeded against under Removal from Service (Special Powers)
Ordinance, 2000 as amended from time to time.
Sd/- 08/06/2006 Divisional Mechanical Engineer-I Pakistan Railways, Karachi (Competent Authority)"
3. His reply to the Show-Cause Notice dated 23.6.2006, in which he vehemently denied the charges, was found not satisfactory and, therefore, rejected, leading to the passing of Impugned Order dated 17.4.2007. After exhausting legal option available to him, the appeal in hand has been filed before the Tribunal under Section 4 of the Service Tribunal Act, 1973.
4. The learned counsel for the appellant has raised a number of legal questions in his arguments.
Firstly, he has agitated that the Administrative Inquiry conducted by Railway Officer in a railway accident was not sufficient for the purpose of imposing major penalty on the accused officer under any disciplinary rules and in support of his contention the learned counsel cited the authority reported in 2001 SCMR 256.
5. He next contended that the respondent- department has committed serious infringement of law by dispensing with regular department inquiry which was mandatory requirement where major penalty is envisaged, In support of his arguments, the learned counsel has cited the case reported in 2008 TD (Service) 362. It was further contended that departmental inquiry was imperative particularly when the facts of the case had been vehemently disputed by the appellant. The authority cited in support of his arguments appears in KLR 2006 L&SC 185.
6. It was next contended that the appellant was denied that opportunity of personal hearing before the impugned order was passed against him. The learned counsel has also agitated the fact that the appellant had been given un-equal treatment because other officials, who were also held responsible in the obligatory inquiry, have not been punished, In support of his contention, the learned counsel cited the case reported in KLR 2007 L&SC 144.
7. On the other hand, the learned counsel for the respondents has controverted the arguments from the appellant's side by maintaining that the inquiry into the incident was conducted by the Federal Government Inspector for Railways which found the appellant guilty as charged. He further argued that regular departmental inquiry was suspended because "fact finding inquiry" into the incident had been conducted at a higher level and sufficient evidence was available before the competent authority to adopt the shorter version of disciplinary procedure available under Section 5(4) of the Removal from Service (Special Powers) Ordinance, 2000. And, therefore, no illegality had been committed to vitiate the proceedings.
8. The learned counsel has also contended that there is inconsistency in the statements recorded by the appellant before the Federal Government Inspector for Railways (Annexure R-1 page-4)'and his contention in the Memo, of appeal. Therefore, the facts mentioned in the appeal could not be relied upon by this Court.
9. He concluded the submissions by stating that the respondents had fulfilled the requirements of law by providing ample opportunity under the prescribed rules to enable the appellant to defend himself and, therefore, prayed that the appeal was liable to be dismissed.
10. We have heard the arguments from both sides. The question that needs consideration is whether or not the respondent-department had adopted the prescribed procedure while conducting disciplinary proceeding against the appellant.
11. It is not denied that the competent authority, has exercised the power vested in him under Section 5(4) of the Removal from Service (Special Powers) Ordinance, 2000 to dispense with the requirement of holding regular inquiry.
12. Admittedly, the authorized officer has discretion to decide whether regular inquiry should be held or not while proceeding against a civil servant. But superior judiciary on numerous occasions has ruled' that such discretion, like any other discretion, is to be exercised fairly and reasonably and not arbitrarily or capriciously, It is now a settled principle of law that regular departmental inquiry is mandatory when major penalty under the law is contemplated against a civil servant. This view is supported by the dictum laid down by the Hon'ble Supreme Court in the case of Naseeb Khan v.
Divisional Superintendent, Railways, reported in 2008 SCMR 1369. In this case, the Hon'ble Supreme Court held that in case of imposing a major penalty, the principle of natural justice requires that a regular inquiry is to be conducted in the matter and an opportunity of defence and personal hearing is to be provided to the civil servant. Similar view has also been held in the case of P.I.A.C, v.
Ms. Shaista Naheed, reported in 2004 SCMR 316. In the case of Inspector General of Police and 2 others v. Shafqat Mahmood, reported in 2003 SCMR 207 it has been held by the Hon'ble Supreme Court that the petitioner has been condemned unheard and a major penalty of dismissal from service has been imposed upon him without adopting the required procedure, resulting in manifest injustice.
13. In view thereof, we find the action of the respondents untenable.
14. The learned counsel for the appellant has next raised the question that the findings of Railway Obligatory Inquiry were not sufficient for imposing penalty under any Disciplinary Rules and hence the penalty so awarded is nullity in the eyes of law. He seeks support in the case appearing in 2001 SCMR 256.
15. We have minutely perused the ibid citation and find that the cited case is different and distinguishable from the case in hand on the ground that in the present case the inquiry was conducted into the incident by the Federal Government Inspector for Railways, whereas, in the cited reference and Loco Inspector, Khanewal. The nature of incident in both cases is also distinguishable. More importantly, the Hon'ble Supreme Court had held in the cited reference that the inquiry held against the petitioner was defective because it "had not been conducted in accordance with law as such the entire subsequent actions based on the said inquiry report have no legal sanctity". There is no mention in the said judgment that the mandatory inquiry cannot form the basis of disciplinary action against the accused official. We therefore, hold a different opinion in so- far as the question about the legality of "obligatory inquiry" is concerned.
16. Be that as it may, we find, there are infringements in the case in hand are sufficiently serious to vitiate the conduct of the entire proceedings, irrespective of the position taken by the appellant's counsel. The reasons are not far to seek.
17. Firstly, the Show-Cause Notice dated 8.6.2006 under Section 5(4) of the Removal from Service (Special Powers) Ordinance, 2000 does not state the reasons for adopting the shorter version of the proceedings. The law, on the other hand, states;- "S. 5(4). The competent authority may dispense with the inquiry under sub-section (1) if it is in the position of sufficient documentary evidence against the accused, or for reasons to be recorded in writing, it is satisfied that there is no need of holding an inquiry."
18. It is not denied that the Show-Cause Notice is defective to that extent. Furthermore, we find no reference to the fact that copy of the inquiry into the accident conducted by the Federal Government Inspector for Railways was ever supplied to the appellant officially to enable him to defend himself against the charges mentioned in the Statement of Allegation.
19. We also find that the authorized officer inflicted major penalty on the appellant without affording him an opportunity to be heard in person which again is a serious infirmity in the eye of law. Although the principle of "audi alteram partem" is not a universally accepted principle, but emphasis on the application is taken into consideration in proceedings where adverse action is being contemplated to be taken against an accused official. We are supported in holding this view in the case of Ms. Anisa Rehman v. P.I.A.C., reported in 1994 SCMR 2232 as well as cases reported in 2007 SCMR 307 and 2003 PLC (CS) 353.
20 It has also been pointed out that the obligatory inquiry had held 15 other persons responsible for the incident but action appears to have been taken against the appellant only. The learned counsel for the respondents has been unable to adequately deny this fact. The respondent- department in their comments have not denied this fact either. From the available material, we are, therefore, able to conclude that the respondents have not been able to dispute the appellant's contention that he has been singled out for un-equal treatment. This again is a serious infirmity in the eyes of law and is therefore, unsustainable. We are fortified in our view by the law laid down by the Hon'ble Supreme Court in the cases reported in 2005 SCMR 499 (Tara Chand v. Karachi Water & Sewerage Board) and 2003 SCMR 291 (Dr. Naheeda Tufail. Government of Punjab).
21. In view of the foregoing, we have no hesitation in holding the view that the appellant's side has been successful in establishing un-curable infringements in the disciplinary proceedings that have been conducted against the appellant.
22. We, therefore, set aside the impugned order and re-instate the appellant into service and remand the case to the respondent-department with the direction to initiate fresh proceedings against the appellant under the law on the same charges. They are further directed to complete the entire process within a period of four months. This period, however, does not, in any manner, extends the time frames prescribed in the Removal from Service (Special Powers) Ordinance, 2000.
The matter regarding back benefit will depend on the out-come of the fresh inquiry.
23. Parties be informed.